Court File and Parties

COURT FILE NO.: CV-19-615531 MOTION HEARD: 02012022 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vincenzo Brifoglio, Plaintiff AND: Laura Latham, Defendant

BEFORE: Associate Justice Jolley

COUNSEL: Murray Teitel, counsel for the moving party plaintiff Matilda Lici, counsel for the responding party defendant

HEARD: 1 February 2022

Reasons for Decision

[1] The plaintiff brings this motion to compel the defendant to answer the list of undertakings set out in his confirmation form. The undertakings all relate to account information that the defendant undertook to use her best efforts to seek from TD Bank.

[2] I find the defendant has used best efforts to obtain the information requested. The motion is misplaced and should be brought against TD Bank if the plaintiff believes that TD Bank has the account documentation but has not produced it, although requested.

[3] The defendant gave the undertakings during her examination for discovery held 22 March 2021. On 13 May 2021 her counsel telephoned TD Bank and followed up with an email request that same day for the banking records in question. Further email exchanges took place later on May 13 and on May 26. There is not suggestion that the documents were not requested.

[4] On 28 May 2021 the TD Bank representative wrote back and advised that she had exhausted her options to locate records for a joint account for 2007 and 2008 stating “multiple departments have told me they are no longer in our system” and that the searches for the documentation for the other requested accounts was still underway.

[5] TD Bank then requested information relating to a mortgage account and the defendant’s lawyer provided it the same day.

[6] On 1 June 2021 TD Bank wrote again to advise that the documentation for another requested account could not be found in the defendant’s name. It requested additional information which defence counsel provided on June 3. On 8 June 2021 TD Bank wrote to advise that one of the listed accounts did not belong to the defendant and to request more information pertaining to the mortgage. On 11 June 2021 the defendant’s lawyers emailed TD Bank to provide additional information.

[7] On 14 June 2021 TD Bank confirmed that the defendant owned two of the accounts, that it had requested statements for a further account and that it could provide visa statements from 2011 onward. On 30 June 2021 TD Bank again reported on the progress and sent some information July 9.

[8] Defence counsel followed up on July 20 and 27, 2021. On 28 July 2021, TD Bank sent an email confirming which accounts it had been able to retrieve and which accounts could not be retrieved. Based on TD Bank’s emails, it seems to have sent information to defence counsel on July 29 but also had the defendant pick up a copy of the documents, although no date is indicated.

[9] It also delivered account information to the defendant’s lawyers in November 2021. When the defendant’s lawyers noticed that information for one account was missing, they wrote back asking why those records had not been received. They specifically inquired about account 6301030, which had been on the request list since May 2021. TD Bank responded: “I did provide a list of every single account Laura had with TD…. As for the account ending in ****030, I was unable to receive a history for that account.”

[10] The plaintiff argues that the position of TD Bank is demonstrably unreasonable as one or more of the accounts is a TFSA account, for which the bank must keep records. He further notes there was regular activity between the TFSA and joint accounts as late as 2020 so the bank’s position is illogical. Further, the defendant knew it was illogical and should have done more. Lastly, the bank’s statements that the defendant does not own certain accounts is contradicted by its own records elsewhere in the file.

[11] I am satisfied that the defendant has demonstrated, through her extensive communication with TD Bank, that she has used her best efforts to obtain the requested documents, that she has provided all the documents that she has received and has questioned the response of TD Bank about its position, where appropriate.

[12] The plaintiff seeks an order compelling the defendant to re-attend on a further examination. She has already attended one examination from 10:00 to 4:00, with, I am told, 4.5 hours of questioning accomplished. The plaintiff may renew this part of the motion, should he wish, upon receipt of any additional documents received as a result of any future 30.10 motion. If he does so, any examination is to be limited to one further hour, the cost of any such attendance to follow the usual course of a further examination.

[13] The plaintiff could not point me to any caselaw to support his request that I direct the defendant to bring a 30.10 motion and I decline to make such an order.

[14] Nor am I prepared to compel the defendant to sign a direction to permit the plaintiff to interact with TD Bank in her stead. The rules provide a remedy for a party who wishes to obtain documents that have not been forthcoming from a non-party and the plaintiff may avail himself of that route, should he choose.

[15] The plaintiff also sought an order that the defendant pay for the production costs associated with his rule 30.10 motion. I am not prepared to make that order. He can argue that on the motion or at the conclusion of trial.

[16] With respect to the request for an updated affidavit of documents, until it is established that the accounts not produced exist or have relevant information, the defendant need not amend her affidavit of documents to reference them. Counsel has confirmed her client is aware of her ongoing obligation to update her affidavit of documents, as required.

[17] Although not requested in his notice of motion, the plaintiff advised that he also seeks an order permitting him to set the action down for trial without prejudice to continuing any further motions. I am not prepared to grant this order. I note that the plaintiff has not even attended his own scheduled examination for discovery, taking the position that he need not attend until the plaintiff has answered her undertakings and produced all of these documents. Clearly, the action is not ready to be set down for trial when one party has not even been examined.

[18] The plaintiff shall agree to a date for his examination upon receipt of whatever documents he obtains from TD Bank. He shall confirm to the defendant within 30 days whether he intends to bring that 30.10 motion. If he chooses not to bring the motion, he shall provide his available discovery dates.

[19] The defendant’s counsel acknowledges that it overlooked one undertaking relating to a Scotiabank mortgage and has undertaken to make that inquiry immediately.

[20] Subject to the one undertaking mentioned in paragraph 19 above, the plaintiff’s motion is otherwise dismissed. Costs to the defendant in the amount of $750.00, a modest discount from her partial indemnity costs outline to reflect there was some delay by the defendant in delivering answers to the plaintiff.

Associate Justice Jolley

Date: 3 February 2022